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Low-quality Patents in the Eye of the Beholder: Evidence from Multiple Examiners

Author

Listed:
  • Gaétan de Rassenfosse
  • Adam B. Jaffe
  • Elizabeth Webster

Abstract

Low-quality patents are of considerable concern to businesses operating in patent-dense markets. There are two pathways by which low-quality patents may be issued: the patent office may apply systematically a standard that is too lenient (low inventive step threshold); or the patent office may grant patents that are, in fact, below its own threshold (so-called ‘weak’ patents). This paper uses novel data from inventions that have been examined at the five largest patent offices and an explicit model of the grant process to derive first-of-their-kind office-specific estimates of the height of the inventive step threshold and the prevalence of weak patents. The empirical analysis is based on patent applications granted at one office but refused at another office. We estimate that the fraction of patent grants associated with a patent standard that is lower than that of other countries ranges from 2-15%, with Japan having the tightest standard and the United States and China the loosest. The fraction of grants that are inconsistent with the office’s own standard ranges from 2-6 per cent. The fraction of grants that are inconsistent in this sense is generally higher in newer fields such as software and biotechnology, and lower in traditional fields such as mechanical engineering. Our estimates of invalidity are much lower than those that have been derived from litigation studies, consistent with litigated patents being highly non-representative of the population.

Suggested Citation

  • Gaétan de Rassenfosse & Adam B. Jaffe & Elizabeth Webster, 2016. "Low-quality Patents in the Eye of the Beholder: Evidence from Multiple Examiners," NBER Working Papers 22244, National Bureau of Economic Research, Inc.
  • Handle: RePEc:nbr:nberwo:22244
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    Cited by:

    1. Stefano Comino & Fabio M. Manenti & NIkolaus Thumm, 2017. "The Role of Patents in Information and Communication Technologies (ICTs). A survey of the Literature," "Marco Fanno" Working Papers 0212, Dipartimento di Scienze Economiche "Marco Fanno".
    2. Sampat, Bhaven N. & Shadlen, Kenneth C., 2017. "Secondary pharmaceutical patenting: A global perspective," Research Policy, Elsevier, vol. 46(3), pages 693-707.

    More about this item

    JEL classification:

    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • L43 - Industrial Organization - - Antitrust Issues and Policies - - - Legal Monopolies and Regulation or Deregulation
    • O34 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Intellectual Property and Intellectual Capital

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